Crime Group Spring Newsletter

Welcome to the Spring edition of the 2 Hare Court Crime Group Newsletter which we hope will provide you with a helpful summary of the Sentencing Council’s recent Guidelines on sentence as well as two recent CACD judgments on modern slavery and consent as a defence to assault.

Naeem Mian QC provides an overview of the sentencing guideline for offences of terrorism which will apply to all offenders aged 18 or over sentenced on or after 27 April 2018.

Laura Stephenson considers the sentencing guideline for offences of domestic violence which will apply to all offenders aged 16 and older who are sentenced on or after 24 May 2018.

Leon Kazakos looks at the sentencing guideline for offences of offensive weapons and bladed articles which will apply to all offenders sentenced on or after 1 June 2018.

Lewis MacDonald welcomes the recent decision of the CACD on where the legal burden of proof lies where a defendant raises a defence under section 45 of the Modern Slavery Act 2015.

Fiona Robertson looks at the CACD’s approach to consent as a defence to assault where a tattooist and body piercer undertook ‘body modification’ procedures on three of his customers.

As always, we welcome feedback and suggestions for future editions which can be submitted here. Equally, please do forward this newsletter to any colleagues who may be interested. They will be able to subscribe to future editions themselves by following this link.

In July 2005, following the murder of 52 people on the London Underground, the then Prime Minister Tony Blair, declared that the “rules of the game” were to change. Over a decade later and following the implementation of numerous pieces of anti-terrorism legislation to meet the increasingly varied nature of offences, the Sentencing Council has finally published definitive guidelines for the sentencing of terrorism offences…

Applicability and Scope

The new domestic abuse guideline was published on 22 February 2018 and applies to offenders aged 16 and older who are sentenced on or after 24 May 2018, regardless of the date of the offence. The overarching principles on youth sentencing will continue to apply in conjunction with the domestic abuse guidelines where the defendant is under 18.

The guideline does not set out recommended sentencing starting points or ranges for specific offences, rather it is a summary of the correct approach to sentencing offences classified as domestic abuse…

On 1 March 2018 the Sentencing Council published a new definitive guideline for sentencing in cases involving offensive weapons and/or bladed articles. The guidelines apply to all offenders who are sentenced on or after 1 June 2018 regardless of the date of the offence. The new guideline follows a consultation exercise begun in October 2016. While there was some existing guidance for adult offenders being sentenced in the Magistrates’ court, there was no such guidance for adult offenders being sentenced in the Crown Court, or for children or young people. The structure of the new adult possession guideline and the fact that it incorporates the key principles set out in case law (R v Povey [2008] EWCA Crim 1261; R v Monteiro & Others [2014] EWCA Crim 747) may lead to an increase in the sentences received by some offenders for carrying bladed articles or other ‘highly dangerous’ weapons…

In R v MK and Persida Gega [2018] EWCA Crim 667, the Court of Appeal has unanimously found that the legal burden of proof rests wholly on the prosecution where a defendant raises a defence under section 45 of the Modern Slavery Act 2015 (‘the MSA’).

In summary, section 45 gives a defence to adults who are compelled to commit a crime because they have been enslaved, trafficked or exploited, as defined in the MSA, and a reasonable person in the same situation would have no realistic alternative to acting as the defendant did. Section 45 constitutes a full defence for any crime other than those listed in Schedule 4, which constitutes a fairly extensive list covering serious violence, sexual offences, robbery, burglary and terrorism offences. Appropriately, in the cases under consideration, the offences related to supply of drugs and possession of false ID, in which context section 45 is most frequently invoked…

Fifteen years on from R v Brown [1993] UKHL 19 the Court of Appeal again had to grapple with society’s modern values in the context of consent as a defence to assault in R v BM [2018] EWCA Crim 560.

The appellant was a tattooist and body piercer who also practised ‘body modification’. The appeal concerned whether the consent of three customers to body modification procedures (first the removal of a customer’s ear; secondly, the removal of a customer’s nipple; and, thirdly, the division of a customer’s tongue to produce a forked effect) could provide a defence to a charge under s.18 Offences Against the Person Act 1861)…